Bethea v. United States

JAMES ALBERT BETHEA, Petitioner,v.UNITED STATES OF AMERICA, Respondent.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION

TILMAN
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT

On
April 23, 2018, Petitioner pled guilty to possession of a
firearm by a convicted felon. Petitioner had previously been
convicted for possession with intent to distribute cocaine,
sale of cocaine, sale of marijuana, and aggravated assault.
Because of these previous drug offense convictions,
Petitioner was sentenced in accordance with the Armed Career
Criminal Act (ACCA), which imposes a mandatory minimum
sentence for a person who is convicted of being a felon in
possession of a firearm under 18 U.S.C. § 922(g) and who
also “has three previous convictions . . . for a
violent felony of a serious drug offense.” 18 U.S.C.
§ 924(e)(1).

Petitioner
moves to vacate his sentence [Doc. 65] on the grounds that
the ACCA is unconstitutional as applied to his sentence.
Specifically, Petitioner claims that the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), invalidates the ACCA as it relates to his sentence,
and that his prior conviction for the sale of marijuana is
not a “serious drug offense” under the ACCA. The
Government subsequently filed a Motion to Dismiss
Petitioner's motion [Doc. 71].

Currently
before the Court is the Magistrate Judge's Report and
Recommendation [Doc. 82]. The Magistrate Judge recommends
that the Court deny Petitioner's motion because (1) it is
time-barred and (2) his prior conviction for the sale of
marijuana was properly identified as a predicate offense
under the ACCA. Petitioner filed a timely objection the
Report and Recommendation [Doc. 83], and the Court is
therefore required to “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1).

First,
Petitioner challenges the Magistrate Judge's finding that
his motion is time barred. Under the Anti-Terrorism and
Effective Death Penalty Act of 1996, 110 Stat. 1214
(“AEDPA”), Petitioner may file a motion
challenging a sentence within one year of “(1) the date
on which the judgement of conviction becomes final . . . [or]
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C.A.
§ 2255(f). Petitioner claims that the Supreme
Court's decision in Johnson recognized a new
right within the meaning of Section 2255(f)(3) by
invalidating the residual clause of the ACCA pertaining to
violent felonies, and that his motion-filed May 23, 2016 and
within one year of the Johnson decision-is therefore
within the time allocated by the AEDPA.

As the
Magistrate Judge correctly noted, Petitioner cannot rely on
Johnson to vacate his sentence under the AEDPA
because the newly recognized right in Johnson does
not apply to him. In Johnson, the Supreme Court held
that the ACCA's violent felony residual clause, which
makes all felonies involving “conduct that presents a
serious potential risk of physical injury to another”
predicate offenses for the ACCA, is unconstitutional for
vagueness. Id. at 2555; 18 U.S.C. §
924(e)(2)(B). Although Petitioner claims Johnson
invalidates his ACCA sentence, he has three prior serious
drug offenses that are unaffected by Johnson and are
sufficient by themselves to trigger ACCA sentencing without
considering any of Petitioner's “violent
felony” convictions.

In his
objections [Doc. 83], Petitioner concedes that
Johnson is inapposite, but he argues that
Descamps v. United States, 570 U.S. 254 (2013), and
Mathis v. United States, 136 S.Ct. 2242 (2016),
which came after Johnson, remedy his AEDPA statute
of limitations problem. However, neither Descamps
nor Mathis created newly recognized rights
established by the Supreme Court; they merely restate the
right established in Johnson. See Beeman v.
United States, 871 F.3d 1215, 1219-1220 (11th Cir.
2017); Holt v. United States, 843 F.3d 720, 722 (7th
Cir. 2016). Accordingly, there is no “new right”
that Petitioner can rely on to trigger the one-year period
under § 2255(f)(3) of the AEDPA, and thus, he was
required to file his Motion to Vacate within one year of
“the date on which the judgement of conviction becomes
final.” 28 U.S.C.A. § 2255(f)(1). Since Petitioner
filed his Motion to Vacate over eight years after his
conviction for possession of a firearm by a convicted felon,
his motion is time barred.

Next,
Petitioner contends that his prior conviction for selling
marijuana was not a “serious drug offense” and
thus, could not count has a ACCA predicate offense. The term
“serious drug offense” includes “(1) an
offense under State law, (2) involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (3) for which a maximum
term of imprisonment of ten years or more is prescribed by
law.” 18 U.S.C.A. § 924(e)(2)(A). At the time of
the Petitioner's conviction for selling marijuana, the
conviction met each of these requirements. See Ga.
Code Ann. § 16-13-30 et seq.; see also West
v. State, 255 Ga.App. 334 (2002).

Although
Petitioner relies on Donawa v. United States Att'y
Gen., 735 F.3d 1275 (11th Cir. 2013), an Eleventh
Circuit case considering whether a conviction for possession
of marijuana with intent to distribute under a Florida
statute is a “serious drug offense” under the
ACCA, Donawa is clearly distinguishable from this
case. Petitioner was not merely convicted for the possession
of marijuana with intent to distribute like the petitioner in
Donawa, but for its actual sale. Additionally, as
the Magistrate Judge correctly indicated, a
“sale” is a form of “distributing”
drugs, which is a predicate offense under the ACCA. See
United States v. Johnson, 570 Fed.Appx. 852, 857 (11th
Cir. 2014).

Therefore,
Petitioner's conviction for selling marijuana was
properly considered an ACCA predicate offense under §
924(e)(2)(A).

For the
reasons stated herein, the Court ADOPTS the
Report and Recommendation [Doc. 82] over Petitioner's
objections and MAKES IT THE ORDER OF THE
COURT. Accordingly, Petitioner's Motion to
Vacate [Doc. 65] is DENIED, and
Government's Motion to Dismiss [Doc. 71] is
GRANTED.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;SO
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.